Tuesday, November 04, 2014

Recent events have raised many questions about conversion, ethics, power
structures and the state of the American rabbinate. But at the heart of the storm is a story
about men empowered to have supervisory control over women’s exposed bodies as
part of the process of conversion. Even
without the scandals and abuses of power, many reasonable people have asked:
Why are women immersing in the nude in the presence of male rabbis in order to
become Jews? How prevalent is this
practice? And what are some possible
pathways forward for thinking about these issues differently from within the
discourse of Jewish law? What follows is
an effort to give an overview of the core issues involved and to suggest some
different ways of thinking about this topic.

Introduction—Black-letter law

A simple reading of the Shulhan Arukh explains how and why we have a
situation where the bodies of female converts would be exposed in the presence
of a court of three men. The components
are as follows:

…We
immerse the convert with a proper immersion without any barriers between the
body and the water…and three men…stand above him and inform him of a selection
of less and more severe mitzvot a second time, while he stands in the
water. In the case of a woman, women
place her in the water up to her neck, and the judges stand outside and inform
her of a selection of less and more severe mitzvot while she sits in the
water. And then she immerses in their
presence and they avert their faces and leave, so that they will not see her when
she comes up out of the water…

Shulhan
Arukh YD 198:1

[A niddah]
must immerse her entire body all at once.
Therefore there must not even be the slightest barrier between her and
the water…

Shulhan
Arukh YD 268:3

All
matters related to the convert, whether informing him of the mitzvot so
that he will accept them, or the circumcision or the immersion, must be in the
presence of three who are valid to serve as judges…

Shulhan
Arukh HM 7:4

A woman
is invalid to serve as a judge.

The cumulative effect of these passages is that a female convert must
immerse all at once in water, naked, in the presence of three men, who function
as a court. Our job is to break down this
picture into its components, to understand how these laws came about, to
identify the values underlying them, to probe them for nuance and complexity
and to see how they might be applied in our own day.

Part I: Immersion—Why do converts immerse in water?

One of the most basic question surrounding conversion is: why is immersion
a part of this process at all? How do we
know that water plays a key role in becoming a Jew?

Immersion, in Jewish practice, is an
ancient and widespread mode of bodily purification from ritual impurities. Its metaphoric application to the context of
conversion plays out gradually over time in rabbinic sources.

Mishnah Pesahim 8:8 features Beit Shammai discussing immersion in the
context of a convert who converts on the 14th of Nisan and then
wishes to eat the Pesah offering that night.
But it is far from clear that the immersion there has anything to do
with the conversion, as opposed to the release from impurity required to eat
the Pesah. [See the parallel beginning
of the Mishnah there: אונן טובל ואוכל את פסחו לערב,
where the immersion clearly has nothing to do with conversion to Judaism.] If anything, it seems like Beit Shammai are unaware
of a specific ritual of immersion that is part of the conversion process.

Indeed, in a discussion of male
conversion, R. Eliezer is cited in Yerushalmi Kiddushin 3:12, 64d as
saying that in any case where either circumcision or immersion failed to happen,
הכל הולך
אחר מילה/“everything
follows circumcision.” This indicates an
awareness of immersion as a potential part of conversion and may already
indicate a preference for including it, but is clear that a Jewish man can
become a Jew without immersing. This contrasts
with circumcision, which is non-negotiable.
[It is not clear from this text alone what R. Eliezer would say about a
female convert.] R. Yehoshua, by
contrast, says אף הטבילה מעכבת/”immersion is
also non-negotiable”, thus asserting the centrality of immersion for conversion
as well.

Despite this somewhat shaky origin for immersion as a rite
of passage, R. Yehoshua’s position wins out over time. We begin to see
the crystallization of the dyad of circumcision and immersion in a range of
sources, most prominently the baraita on Yevamot 47a-b, which clearly
features both physical processes in series, as well as in the statement of R.
Yohanan on 46b: לעולם אינו גר עד שימול ויטבול/“a
person can never be a convert unless they are circumcised and immersed”. In the Bavli, this view is attributed to חכמים, giving it a more secure place as a required ritual. Also noteworthy in this regard is the view of
Rabbi cited in Sifrei Bemidbar 108, who states that the Israelites’
ancestors entered into the covenant through, among other things, immersion. He states that converts do the same.

A number of rabbinic stories also
insist on and assume immersion as a requirement. On Yevamot 46b, Rabbah reports an
incident where a prospective convert was told to immerse by R. Hiyya b.
Rabbi. On 45b, two stories in the name
of R. Asi and R. Yehoshua b. Levi validate conversions by
claiming that there was an immersion that happened at some point.

With respect to female conversions, the Talmud Bavli makes its perspective clear. In contemplating how the first generation of
women became Jewish when standing at Mount Sinai, the Talmud asks and answers
as follows:

בבלי יבמות מו:

טבילה באמהות מנלן? סברא הוא, דאם כן,
במה נכנסו תחת כנפי השכינה?

Talmud Bavli
Yevamot 46b

How do we
know that our maternal ancestors immersed?
It is common sense, for if not, how else would they have entered under
the wings of the divine presence?

Though the precise origin of the requirement of immersion as part of
conversion is hard to anchor in any ancient text, the Talmud here helps us
understand its necessary centrality, particularly for women. Rabbinic texts
consistently assume without exception that conversion to Judaism is an embodied
process. A key element of becoming a
Jew, as understood by our Sages, is that one acquires a Jewish body. While some early
sages—like R. Eliezer—thought that circumcision alone might be able to effect
this transition for men, women needed an alternative. That alternative was immersion in water. And ever since the Talmudic period, this has
been a bedrock, non-negotiable element of conversion to Judaism for both men
and women.

Summary: Immersion emerges in the classical rabbinic period as a central
rite of conversion, as a ritual mainly anchored in the practice of removing
ritual impurities was exported to this more metaphorical context of status
change. Immersion signifies an embodied
transition from a Gentile to a Jewish state and is a critical element of any
conversion.

Part II: Dignity—Why is immersion done naked?

For many, even stranger than the fact of immersion is the way it is done:
wearing nothing. Why is it done this way
and how rigid is that requirement?

The use of water in order to effect purification and status change, is
mentioned in the Torah in a number of places.
In most places it is described with the words ורחץ במים/“He shall bathe in water” or ורחץ את בשרו במים/“He shall bathe his flesh in
water.” These phrases alone might only
indicate washing a part of the body, perhaps the part that is the source of
impurity or that directly contacted it.
But, when discussing a man with a seminal emission, the Torah phrases
the requirement to bathe as follows:

Now a
man, when there goes out from him an emission of seed, he is to wash in water all
of his flesh, and will remain-tamei until sunset.

Rabbinic sources assume that this requirement is not specific to the case
of a seminal emission, but that it is a standard for all people and objects
that must undergo purification or status change through water. The entire body must be washed. In fact, the Sifra uses this phrasing of כל בשרו to go even further: the water
used for washing must be of sufficient quantity that the entire human body
could fit into it at once:

“All of his flesh”—Water that his entire body could fit
in. How much is that? Three cubic cubits. From here we learn that the size of a mikveh
must be 40 se’ah.

Thus, Jewish ritual baths must contain
40 se’ah of water (the equivalent of 332-573 liters, depending on how
you calculate it). One might still
imagine one can accomplish the required act of bathing by serially washing the
various parts of one’s body, known in rabbinic terminology as טבילה
לחצאין.
The Sifra elsewhere negates this possibility, demanding immersion all
at once. This requirement is
creatively derived from the following verse, which describes what impure
priests must do before consuming sacred meat:

“Unless
he washes his flesh in water”—Might it be allowed to wash one limb at a
time? Scripture says: “when the sun
comes in, then he is pure”—just as sunset happens all at once, so too [his
immersion] in water must be all at once.

These texts
thus combine to require that ritual bathing must be immersion of one’s entire
body in 40 se’ah of water, all at once.
[There was some controversy in the middle ages as to whether the rules
might be more lenient when dealing with a natural spring or other source of
seemingly unlimited, living waters.
Rambam ruled that such a natural spring need not have 40 se’ah
and R. Meshullam suggests that perhaps טבילה לחצאין is also valid in this sort of spring.] And this leads to a situation where the
person immersing is naked when they do so.
Indeed, quite apart from the various prooftexts that produce this
approach, immersion in the nude powerfully simulates a kind of rebirth. Just as an infant emerges naked from the amniotic
sack and begins life anew, so the one who immerses in the mikveh
experiences a significant transformation through nude immersion that would not
be captured by a more serial washing of the body.

In case there
was any doubt that perhaps the rules for immersion for converts are different
than for cases of impurity, the Talmud clarifies in a baraita on Yevamot
47b that a convert must immerse in the same sort of water needed for a niddah
and that any object considered an obstruction in the context of immersion for
purity also constitutes an obstruction for the purposes of conversion.

Immersing in Clothing

However, a
person could theoretically be covered in loose clothing and still have their
entire body come into contact with the water at once. Indeed, a Talmudic passage addresses this
possibility. Mishnah Beitzah 2:2 assumes
unanimity around a prohibition to immerse objects (like vessels and clothing)
on Shabbat and Yom Tov. On Beitzah 18a, Rav
rules that a woman in a state of niddah can circumvent this prohibition
by immersing in a piece of impure clothing, thus purifying it at the same time
that she immerses herself (since immersion for people is not forbidden on
Shabbat and Yom Tov).

While this
ruling is focused on the ban on immersion on Shabbat and Yom Tov, it has
consequences for the laws of immersion as well: Rav considers immersion while
clothed to be a valid immersion. This
point is ruled by a number of later commentators:

Anyone
who immerses should immerse his entire body while naked, all at once…If any
impure person immersed in his clothing, the immersion counts, because the water
enters the clothing and it does not constitute a barrier, and so too a niddah
who immersed in her clothing is permitted to her husband.

רא"ש מסכת נדה הלכות מקוואות סימן
כח

נדה יכולה לטבול בבגדיה לפי שהמים נכנסין
תחת הבגדים

Rosh Niddah, Mikvaot #28, R.
Asher b. Yehiel, Germany/Spain, 13th c.

A niddah can immerse in
her clothing, since the water comes in under the clothes.

Rambam’s language
is cited in the Shulhan Arukh:

שו"ע יורה דעה קצח:מו

נדה שטבלה בבגדיה מותרת לבעלה.

Shulhan Arukh YD 198:46

A niddah
who immerses in her clothing is permitted to her husband.

R. Eliezer b. Natan (Germany, 12th c.), in Ra’avan #327, argues
that the validity of the immersion is dependent on the clothing being loose,
such that the water indeed comes into contact with the body. R. Shabbetai Kohen (Poland, 17th
c.), in ShakhYD 198:56, cites this as a limiting factor. Nonetheless, others, such as Ma’adanei Yom
Tov on Rosh above, seem to claim that no clothing would really block water
from getting the body wet. R. Moshe
Feinstein (United States, 20th c.), in ResponsaIggerot
Moshe EH 4:23, seems to think that a bathing suit does not constitute a barrier
between the body and the water, at least on the level of retroactively
invalidating an immersion.

If we followed Rav’s
language of נדה מערמת וטובלת/“A niddah
can circumvent the law and immerse”—which sounds like a prescriptive
endorsement of the validity of such an immersion—it would seem that one simple
alternative would be for female converts to immerse in clothing in the presence
of a beit din of men.

Nonetheless, many understand immersion in clothing to be valid only after
the fact, arguing that Rav only permits such an immersion when there is a need
for pure clothing, Rambam, they argue, deliberately uses the language of עלתה להם טבילה, which sounds post facto, Rosh Niddah Be-kitzur #2 assumes
that normal procedure is for women to disrobe when they immerse for niddah,
and Shulhan Arukh uses the post facto
language of נדה שטבלה. Of course, even if this is correct, the
simplest argument is that these sources all deal with cases of a niddah,
where men need not (and generally should not) be present.
Arguably, the case of a female convert, where many think that a court of
three men must be present for the immersion, is intrinsically בדיעבד, a non-ideal situation to which post facto rules ought to apply.
Indeed, Ra’avan seems to make just such an argument:

If a
woman must immerse in a place where people are standing, her immersion counts
if she immerses in a sheet or a robe. As
it says [on Hullin 31], “If a niddah immersed unintentionally, Rav says
she is permitted to her husband”…The Talmud understands that ruling to apply to
a case such as her falling off of a bridge [in which case she was clearly
clothed]. Therefore, she can immerse in
her clothing and the immersion counts.
Similarly, “Said Rav: A niddah who has no [pure] clothing to
change into after immersion can subvert the law [against immersing clothing on
Shabbat and Yom Tov] and immerse in her clothing on Shabbat or Yom Tov in order
to immerse them with her.” Therefore, a niddah
can immerse in her clothing in pressing circumstances, as in a case where she
fell into the water or she has no clothing.
Here too, in the pressing case where there are people standing in the
place of immersion, if she immerses in her clothing, she has immersed. But this is only true of a woman in clothing
that is broad, since such was the dress of their women—as is the practice of
Bohemian women in our own time. But with
respect to a man in narrow clothing that is skin tight such that water cannot
enter, or women today who wear arrow clothing, this leniency does not
apply. Since [Rav] only speaks of a niddah
and not of a zav or another impure person, we learn that a man in short
clothing cannot do this. Nonetheless,
whether a man or a woman, it is permitted to immerse in a sheet on account of tzniut,
since water can penetrate.

While Ra’avan does not address a case of a female convert, the logic would
seem to apply: given the concern for tzniut, it is valid to plan an
immersion in loose-fitting clothing such that doing the immersion in the
presence of a male beit din will not
be improper. This logic is adopted by R.
Yitzhak Ya’akov Weiss (Galicia/England/Israel, 20th c.) in Responsa
Minhat Yitzhak 4:34; he suggests that female converts immerse while clothed
in front of the beit din. But in
order to accommodate the seeming ideal to immerse in the nude, he suggests that
the female convert then immerse again in the nude in the presence of a woman
after the beit din has left the room. R. Ovadiah Yosef (Israel, 20th
c.), in Responsa Yabia Omer I YD #19, is more lenient, advocating that
female converts simply wear a very loose robe where there is not yet a
prevailing practice to the contrary.

[I am not addressing here another issue that relates to wearing even very
loose items that one would not normally want to get wet. For instance, what is the effect of wearing a
gold bracelet that in no way impedes water from directly coming into contact
with the body, but which one would normally remove before getting wet? There is significant medieval and modern
debate surrounding that question, both in terms of what the ideal policy should
be and what, if any, effects such objects have on the validity of an immersion
after the fact. Suffice it to say that
the sort of robe suggested by Yabia Omer above would not be subject to this
sort of concern. Those interested in seeing
a basic survey of this side issue can consult the following sources: Shabbat
57a, Rashi there, Tur YD 198, Beit Yosef and Shulhan Arukh YD 198:3-4, Pithei
Teshuvah YD 198:4.]

Summary: Rabbinic sources understand the Biblical requirement to wash the
body to entail immersing in the nude, such that all of the body comes into
contact with water at once. Immersion
creates an experience that echoes rebirth, as the body enters entirely into
water and then emerges. While nude
immersion ensures simultaneous contact of all parts of the water with the body,
this can also be accomplished when wearing clothing that allows water to
penetrate. Such immersions have been
validated since the Talmudic period and a number of authorities recommend
clothed immersion when it will preserve the dignity of the person who is
immersing.

Part III: Power—The role of a court in conversion

Conversion to Judaism, as experienced today, involves rabbinic
authority. Specifically, a beit din—a
court of three—ultimately oversees and validates the process of
conversion. Where does the notion that a
beit din is required for conversion come from? And how essential is this requirement?

A number of excellent treatments of the topic have been written in recent
years. Avi Sagi and Zvi Zohar wrote an
in-depth book in Hebrew on the history of
halakhah around key topics in conversion, including the role of a court in the
process. The book was later also reworked
for an English edition. Sagi and Zohar try to separate out
conflicting strands of interpretation surrounding conversion, particularly with
respect to the nature and scope of the requirement for the convert to accept
the burden of observing mitzvot once
a Jew. Joshua Kulp analyzes the history of
this question in classical rabbinic literature.
Kulp’s basic claim is that there is no evidence for a court in the
Tannaitic period and significant evidence against. The notion of converting in front of other
Jews has traces in the Tannaitic period, seems to grow in influence during the
Amoraic period and only really settles in to a universal assumption by the end
of the Talmudic era. I will touch on a
number of texts he raises, but he offers a fuller analysis. Michal Tikochinsky discusses the role of a beit
din in both Hebrew and English versions of an
article that deals more broadly with the question of female converts immersing in
front of men. She devotes considerable
attention to medieval and modern authorities who discuss this topic. Tikochinsky argues that we have overlooked various
legal opinions that would allow for female immersion in front of a group of
three women. Her more detailed analysis
is highly valuable for understanding this topic more fully and its contemporary
relevance.

The Pre-history of Courts and Conversion

Tannaitic sources speak loudly through their silence regarding beit din.
There is no Tannaitic text that formally
speaks about this requirement, and several that can hardly be recognized as
compatible with such a requirement. Most
pointedly, the category of גר שנתגייר בין
הגויים/”a
convert who converted among the Gentiles” mentioned in Tosefta Shabbat 8:5
clearly points to the possibility of self-conversion in a completely Gentile
context devoid of knowledge of basic Jewish practices like Shabbat. And such a conversion is universally agreed
upon as valid in that text. [See
parallel at Sifre Zuta 15:14.]

A number of sources speak of the notion of קבלה/acceptance with respect to converts, indicating some sort of
vetting body that decides whether they are allowed to proceed to enter into the
Jewish people. But it is not at all
clear that this indicates any sort of formal requirement. The notion of “acceptance” may be a
dreamed-of ideal, wherein the Jewish community and a rabbinic power structure
have the ability to control the flow of those converting in in a more stable way. Alternatively, the language of קבלה may indicate nothing more than the Jewish community’s
acceptance of the convert after the conversion.

This latter definition seems to be the dynamic in play in the following
text:

One who converts for the sake of love, whether a man for
a woman or a woman for a man, along with those who convert for political
benefit, those who convert out of fear of divine punishment or those who
convert for fear of the Jews [like in the days of Mordechai and Esther], should
not be accepted.

Rav said: The halakhah is that they are all
converts and we do not push them away in the same manner that we push away
[prospective] converts when they first approach us. Rather, we accept them and we must draw them
close since they may have converted out of sincere motives.

The opening baraita states that
converts coming from improper motives should not be accepted. From Rav’s subsequent statement it is
clear that we are speaking about people who have already converted and we are
assessing their conversion in retrospect.
It is clear that מקבלין here refers to
some sort of acceptance into the community of Israel. It is less clear as to whether this is in the sense of
giving the conversion a stamp of validity (Kulp’s preferred reading—based on
the parallel in the Bavli and Massekhet Gerim to the baraita, which reads אינם גרים) or allowing the convert to
marry other Jews (Zohar and Sagi’s preferred reading—paralleled by the dynamic
in Mishnah Yadayim 4:4). Either way,
this text is important for showing that the term מקבלין need not in any way indicate a court that must administer a
conversion in order for it to be valid.

A series of rulings in Tosefta Demai 2:3-7 also clearly use the term
מקבלין in this retroactive fashion.
Those rulings deal with various figures who have accepted obligations
upon themselves, including a kohen who has agreed to all the rules of
the Temple service except one, where the rule is אין מקבלין אותו/“we do not accept him”.
That statement clearly has nothing to do with validating his status as a
kohen but rather has to do with allowing him to participate in the
Temple service and to eat holy foods associated with it. In the parallel case of a גר/convert, it is possible the text is speaking about a refusal to
recognize his conversion at all in practice, but might also be limited to
accepting him for marriage to other Jews.
Either way, there is no evidence here of a court as part of the
process of conversion.

There are a few texts that seem to
indicate some kind of vetting process done by some group of people before the
conversion begins. Yerushalmi Demai
2:1, 22c features the phrase גר שבא להתגייר אין מקבלין אותו/“A
(prospective) convert who comes to convert is not accepted”, where some sort of
קבלה is in place before the process has started. In the Bavli baraita parallel to Tosefta
Demai above on Bekhorot 30b, the language is different and also reads: עובד
כוכביםשבא לקבל דברי תורה חוץ מדבר אחד, אין מקבלין אותו/“A Gentile who comes to accept all matters of Torah
except for one is not accepted,” which clearly places the קבלה prior to the conversion.
And then in the Bavli’s long baraita on conversion on Yevamot 47a-b,
there is clearly some body of people who are giving instructions and warnings
in the phase before conversion has begun.
However, while this points to some growing institutionalization of
conversion, there is no evidence yet for the need for a court as an element
of the conversion itself. To the extent that
conversion is essentially a personal and devotional transition, it would make a
great deal of sense to have it be parallel to all other forms of purification
and status change, which do not require a court.

Several sources point to rabbis
converting (as a transitive verb) people who are coming to them, perhaps
indicating increasing rabbinic influence over the process. Yerushalmi Yevamot 8:1, 8d features a
story told by R. Yitzhak b. Nahman about R. Yehoshua b. Levi
asking R. Yudan Nesia to stay and help him complete a conversion. While this is not a story about a court of
three, there does seem to be some notion here of desiring or requiring the
presence of other Jews (Sages? The Patriarch?) in order to execute a
conversion. A parallel story on Bavli
Yevamot 46b reported by Rabbah features a conversion that is delayed
until the next day, with the rabbinic protagonist saying ונטבלינך/“and we will immerse you,” indicating a plural group of people
who will be involved in the immersion of a male convert.

Finally, the aforementioned baraita
on Yevamot 47a-b describing the conversion process has not only an anonymous
set of people who instruct and warn the potential convert, but also features שני
תלמידי חכמים/”two scholars”
who are present for the immersion and instruct the convert prior to this final
act.

None of these sources in any way
suggests the presence of a court as a sine
qua non for conversion. In fact, we
have statements of Amoraim that are clearly incompatible with any requirement
of a court. R. Asi validates the
Jewish status of a woman based on a presumption that she must have immersed at
some point for the purposes of niddah.
This immersion—the only component of a female conversion—clearly did not
take place in the presence of a court.
We thus see an ongoing tradition of validating conversions that happen
outside of the context of courts.

One of the earliest explicit sources on
the presence of a beit din for
conversion is R. Huna’s statement on Ketubot 11a holding that the
conversion of a minor is done with the intention of the beit din. Kulp analyzes this
passage at length and suggests that the notion of a court being a part of
conversion was already crystallizing in R. Huna’s time and he utilized this
fact to solve the problem of how to convert a minor without his or her consent. We might even suggest that R. Huna was an innovator
of the idea of a formal beit din for
conversion, as his language almost sounds like a beit din might otherwise not have been involved, if not for the
special case of the minor.

However we understand R. Huna, two
things should be noted: 1) No source from Eretz Yisrael ever mentions the
formal need for a court as part of conversion and 2) there are a number of
sources in the Bavli—cited as hailing from Eretz Yisrael—that do assert the
importance of a court, and we will now turn to those.

Requirement for a Beit Din in the
Babylonian Talmud

The most direct source on this question
is a Babylonian baraita, which states, in the name of R. Yehudah,
that conversion without a court is invalid:

Our Sages taught: “You shall judge fairly between a man
and his brother and his ger [read here as convert]. Based on this, R. Yehudah said: A convert who
converts in a beit din is considered a convert. A convert who converts on his own is not
considered a convert.

Once a man came to R. Yehudah and said to him: “I
converted on my own.” R. Yehudah said to
him: “Do you have witnesses?” He said:
“No.” “Do you have children?” He said:
“Yes.” R. Yehudah said to him: “You are
reliable to disqualify yourself, but you are not reliable to disqualify your
children.”

Kulp notes that there is a total
absence of courts in any discussion of conversion in Eretz Yisrael. Indeed, a number of other elements of the
first part of this baraita seem out of step with Eretz Yisrael traditions. The word גרו in Devarim 1:16 is never read as referring to a convert in any Tannaitic
text. In addition, there is a parallel
to the second half of the baraita here in Yerushalmi Kiddushin 4:7, 66a,
whereas there is no parallel to the first half, where the issue of converting
with a court is discussed. Internal to
the Bavli text itself, we also see that the second half of this baraita does
not match the first part: it speaks about witnesses, whereas the first half
talks about beit din. Also, the
subsequent section of Talmud reveals that Amoraim in the Bavli clearly know the
latter part of this text and comment on it, whereas there is no Amoraic comment
on the first portion.

All of this points to a reasonable
conclusion that the first section of this baraita has been refracted through a
later Babylonian conception that a court might be critical for conversion. [This sort of reworking of earlier traditions
in Babylonia was already known to medieval commentators and modern scholars
have documented it more systematically.
For a good introduction to this sort of analysis, see J. Kulp and J.
Rogoff, Reconstructing the Talmud, 23-29.] In any
event, even in this later form, the insistence on a court is only attributed to
R. Yehudah, whose position might not be universally accepted.

The most direct piece of evidence
demanding a court in all conversions is the statement of R. Yohanan
found on Yevamot 46b: גר צריך שלשה/“a convert
requires three.” R. Yohanan seems to
have been engaging in some way with the long baraita on 47a-b and its mention
of two scholars, who are present for the convert’s immersion, because on
47b he instructs someone to emend the text to read three, in keeping
with his view. This statement itself is
not overly focused on a court per se, but requiring three seems to imply
a court, and the Aramaic appendage to R. Yohanan’s statement: משפט כתיב
ביה, while highly unlikely to be
Amoraic, makes this angle clear.

Even a full normative acceptance of R. Yohanan only suggests a desired
process—צריך—not necessarily a sine qua non—מעכב. This last leap is made
by the anonymous voice of the Talmud on Kiddushin 62b. The text there is discussing marriages that
are contracted based on future events, such as a Gentile man who gives an
object of worth to a Jewish woman and declares that the betrothal will take
effect after his future conversion. The
Mishnah declares that such a marriage is invalid. The Talmud concludes that this is so because
a convert is incapable of (not just forbidden from) converting on his
own and cites R. Yohanan’s requirement for a court of three as proof. This layer of interpretation then turns R.
Yohanan into a non-negotiable requirement.
This would then complete the transition from a world of self-performed
conversions to one in which conversions must be performed by valid
rabbinic courts.

As a value statement, this approach removes conversion from the personal
realm. The beit din now
functions as a legal, naturalizing body, its authority an essential element of
the process of admitting someone to the ranks of the Jewish people. If the physical acts of conversion are
personal and embodied steps taken by the convert, the metaphysical shift in
that person’s status is only effected through empowered emissaries of the
Jewish people.

Harmonizing Conflicting Precedents in the Babylonian Talmud

Nonetheless, recall that the Talmud reports that R. Asi validated a woman
as Jewish by confirming that she had visiting the mikveh in the context of niddah, an immersion at which the
court was clearly not present. How can
we reconcile this with the Talmud’s interpretation of R. Yohanan and the
non-negotiable requirement for a court?

There are at least nine ways of resolving this tension:

1)R. Asi and the Talmud’s reading of R. Yohanan are indeed conflicting
rulings. But there is no inherent
contradiction between R. Asi and the plain sense of R. Yohanan. R. Yohanan said צריך but not מעכב; ideally we
have the involvement of a court, but it is not essential after the fact. We do not take the anonymous Talmud’s usage
of R. Yohanan in the Kiddushin passage to be determinative of R. Yohanan’s normative
meaning. This seems to be the approach of
Halakhot Ketuot cited in
Ginzei Kedem V, p 156 (=Toratan Shel Rishonim II:15).

2)R. Asi and the Talmud’s reading of R. Yohanan are in conflict, and we rule
like the Talmud’s reading of R. Yohanan.
Therefore, any conversion done without a court is invalid, even after
the fact. This is the approach of Halakhot
Gedolot #8, p. 152.

3)An immersion done for purposes of conversion is valid after the fact, even
if there was no beit din. R.
Asi’s ruling is about seeing immersion for niddah as indicative
of a prior immersion for conversion.
But this conversion is valid only with respect to validating
facts already on the ground. For
instance, any children born to such a person have full Jewish legal status and
presumably existing marriages don’t need to be broken up. It is likely that any number of stringencies
that apply to Jews would apply to this person.
R. Yohanan’s ruling applies to any proactive step we will now take with
this convert that will treat him like a Jew, most notably with respect to
marrying other Jews, but also with anything we would describe as מנהג גר/“treating him like a convert”. [This fascinating category is left undefined;
it is unclear what, beyond allowing a marriage, it might include.] These bridges are only crossed upon an actual
immersion in front of a court of three.
This is an attempt to balance approaches 1) and 2). This seems to me the correct reading of the Rif,
and Meiri on Shabbat 68b and Rosh interpret Rif in this way as
well.

4)A beit din is always non-negotiable for conversion and without
immersion in the presence of three, there is no force to the conversion
whatsoever. However, immersion for the
purposes of niddah—and for that matter, any other established
pattern of mitzvah observance—is indicative of a prior immersion in
the presence of a court. This
establishes a presumption that the person is a Jew, but we only apply this presumption
to facts already on the ground. In order
to allow marriage to a Jew, we would require re-immersion in front of a court
of three in our presence. This is Rambam’s
view, which represents an extension and further development of the Rif that
takes R. Yohanan even more seriously as a non-negotiable element of conversion.

5)R. Asi’s validation of immersion without a court is because such a public,
well-known immersion that everyone is aware of is considered כאילו עומדים שם/“as if the court is standing
there.” This is a viewcited
in the Tosafot. In other words, the public
nature of the immersion is non-negotiable, but there are other ways for it to
be public without actually having a court physically present at the time of
immersion.

6)R. Asi validates immersion without a court, but there is another
component that can suffice for the court requirement: קבלת מצוות/“acceptance of mitzvot.”
Having a court present at that phase is sufficient to meet R. Yohanan’s
criterion. This is the view of Tosafot,
who invent this stage of קבלת מצוות as distinct
from immersion in order to solve the problem of R. Asi and R. Yohanan. Tosafot Yeshanim clarify that this
interpretation only works if we assume that R. Asi’s case featured an earlier קבלת מצוות in the presence of a beit din.

7)A hybrid view of Tosafot and the Rif: Having a court for קבלת מצוות is non-negotiable for a valid
conversion. If immersion was not done in
the presence of a beit din (even if קבלת מצוות was), then the convert’s status is validated for all facts
already on the ground but cannot be allowed to marry Jews until an immersion in
the presence of a court. Ramban holds this view by reading it back into
the Rif.

8)In R. Asi’s case, the immersion was completely up to R. Yohanan’s standards
and in fact happened in the presence of a beit din, which is
non-negotiable for a conversion. But
because the immersion was not for the purposes of conversion, but for niddah,
people used to disparage these converts.
R. Asi defended these converts because they did, after all, immerse in
the presence of a court. This is the
view of Ra’ah cited in Ritva and strains the facts of the R. Asi
case considerably.

9)R. Asi’s case was a valid immersion on the Biblical plane, because R.
Yohanan’s requirement of three is only a rabbinic-level requirement. There is indeed a Biblical-level requirement
for a beit din, but even one person is sufficient for that, and there
was clearly one person present for the immersion. This is the view of R. Yehudah bR. Yom Tov
and R. Simhah, cited in the Mordechai.
See also Or Zarua I:745. It seems
highly implausible that this view is claiming the presence of a man during the
woman’s niddah immersion. Rather,
this seems to reflect a view, attested in the world of the Tosafot, that women
are valid as judges, at least in this case.
[We will return to this position in Part V.]

Two things should be clear from this analysis. First, with respect to assessing conversions
after the fact, there ought to be a reasonable amount of leeway with regard to
validating at least some conversions or at least some facts on the ground even
in the context of serious questions surrounding the role and validity of the beit
din that was involved in the process.
Approach 1 might be added fodder for validating a questionable beit
din situation after the fact.

Second, almost all of the approaches, as a matter of protocol, require that
a court attend to the immersion. For
approaches 1-5 and 8-9, the entire essence of the conversion for a woman is
the immersion, such that a court must clearly attend to it. Approach 5 suggests that the requirement for
immersion in the presence of the beit din is met if the immersion is
clearly known to all to have happened.
Approach 9 opens the possibility that women might be valid to serve as
members of the court, but the presence of at least a single valid judge is
non-negotiable. Approach 6 explores
bolder territory, suggesting that immersion is not the essence of
conversion. Rather, the acceptance of mitzvot
is the core element and it is this that requires a court. Immersion may not need a court at all. Approach 7 grants this approach some weight
for validating facts on the ground, but ultimately aligns with all of the other
approaches as a matter of preferred procedure.

The question surrounding flexibility around the presence of a beit din
for the immersion thus comes down to the relative weighting of approach 6
against all of the other approaches. And
much of the analysis of the proper weighting comes down to how to read the
Shulhan Arukh. Here is what it says:

Everything
to do with a convert, informing him of the mitzvot so he will accept them,
the circumcision and the immersion must be done in the presence of three people
who are valid to judge and during the day.
However, this is only ab initio.
Post facto, if the circumcision and the immersion were done in
the presence of two people (or relatives) and at night, even if the
immersion was not for the purposes of conversion, but a man immersed for a
seminal emission and a women immersed for niddah, the person is a
convert and may marry other Jews, with the exception of the acceptance of mitzvot,
which must non-negotiably have happened during the day and in the presence of
three.

But for
Rif and Rambam, if the immersion or the circumcision happened in the presence
of only two or at night, the conversion is invalid and he may not marry a Jewish
woman, though if he already married a Jewish woman and had a son with her, we
do not disqualify him.

The Shulhan Arukh in fact begins by codifying approach 6, tolerating the
validity of a conversion where no beit din was present for the
immersion. Only then does he cite Rif
and Rambam’s more exacting standards in this regard. Several later authorities argued that this
signals a holding like approach 6 and therefore creates room for leeway when female
immersion in the presence of men is untenable. The well-established principle of שעת הדחק כדיעבד דמי/“pressing cirumstances are
treated like a post facto situation” might lead one to claim that, in
such pressing circumstances, the presence of a male court of three is only
required when it is non-negotiably required for the conversion to be
valid. If the Shulhan Arukh endorses
approach 6, then perhaps we can forgo the presence of the court at the
immersion if it will create a difficult or inappropriate situation. This is the core of the approach of R. Uzziel
in Responsa Mishpetei Uzziel YD I:13.
Tukochinsky analyzes this source in depth, but its basic argument is to
shore up approach 6 as dominant, to see the presence of the beit din as
only truly critical for the phase of accepting mitzvot (even according
to the Rif and the Rambam), and to argue that the improprieties involved in
having a beit din at the immersion of a female convert warrant following
post facto standards in this area.
He aims to accommodate the views of Rif and Rambam by instructing the beit
din to appoint three women to administer the female convert’s immersion,
such that they will function as emissaries of the beit din. This has the effect of marshaling approaches
5 and 9 to the cause as well.
Tukochinsky cites a few other sources that look favorably on this
approach as well.

R. Uzziel’s approach makes a great deal of sense as an attempt to look at
the full scope of opinions here, though he blurs some lines while doing
so. In particular, Sagi and Zohar demonstrate
that there is no such thing as קבלת מצות outside of immersion for anyone other than the Tosafot and their intellectual
descendants. Therefore, any attempt to
say that Rif and Rambam would ultimately concede that immersion can happen
without a court as long as קבלת מצות happened with
one is fundamentally flawed. R. Uzziel
can only be shored up by seeing him as ultimately convinced by the Tosafot’s
approach and the combined wisdom of approaches 5, 6 and 9, even as he perhaps
oversteps by reading these preferences back into the Rif and the Rambam.

For this reason, others who are particularly enamored of the Rambam’s
approach—and especially those who do not think that the Shulhan Arukh so
obviously sidelines it—reject R. Uzziel.
R. Ovadiah Yosef, in Responsa Yabia Omer I YD #19, strongly
rejects R. Uzziel’s approach, asserting that the Shulhan Arukh indeed follows
Rif and Rambam on this front and does so without any flexibility. Similarly, R. Moshe Feinstein, in Iggerot
Moshe YD 2:127, asserts that a woman who has an immersion without the
presence of a beit din is in a doubtful state. Out of concern for the Rambam’s
position—which he does not assume is dismissed by the Shulhan Arukh—he requires
a second immersion in the presence of a beit din in order to clarify her
status. [See also Teshuvot Vehanhagot
I:621 for a similar view.]

Summary: The requirement for a beit
din as part of conversion emerges during the Talmudic period. By the end of that period, it is settled law
that a court of three should be a part of this process. Debate continued over the following
questions: How non-negotiable is this requirement? Must the court be present for the immersion
itself, or can the requirement for a beit din be met during a separate
phase of accepting the obligations of mitzvah observance? The discussion essentially comes down to how
one weighs the relative approaches of the Tosafot and the Rambam. Michal Tikochinsky tries to reopen this
debate by citing R. Uzziel and an early suggestion of the Tzitz Eliezer, both
of whom seem to be fundamentally willing to govern female immersion cases by post
facto rules, arguing that the Shulhan Arukh does not negate the validity of
conversions that fail to match Rambam’s paradigm. Anyone insisting that we must accommodate Rambam’s
view even in pressing circumstances will balk at any such leniency, as do R.
Moshe Feinstein and R. Ovadiah Yosef.

Part IV: Presence—What counts as the beit din being present?

If the beit din merely needed to be involved in the immersion, to
guide it, to instruct it, to ensure that the convert was proceeding with the
intention of fulfilling its requirements, the contemporary discussion would be
much less charged. The heart of the
matter surrounding a male beit din and female converts centers around an
assumption that the male beit din must be in the room when the female
convert immerses. Where does this
come from and is there any room for nuance in this regard?

In order to understand the discussion, we must begin with the central
Talmudic text that discusses the immersion procedure:

…Two
scholars stand above him and inform him of a selection of less and more severe mitzvot. Once he immerses and comes up [out of the
water], he is like a Jew for all purposes.

In the
case of a woman, women place her in the water up to her neck and two scholars
stand outside and they inform her of a selection of less and more severe mitzvot.

This text makes clear that male and female converts do not have the same
procedure. Specifically, while both
types of convert receive instruction regarding mitzvot from the scholars
while in the water, men receive it as the scholars stand over them, whereas
women receive it as the scholars stand outside the room. A plain reading of the text suggests that the
scholars (later understood to be a court of three—see Part III) never enter
the room. They are present, but in
the sense of giving the act of immersion meaning and context. The notion that immersion must be done with
intention and proper context is true more broadly, thus giving even more sense
to this choreography. Mishnah Hagigah
2:6 makes clear that immersions for impurity done without any intention are
invalid. By informing the convert of
the mitzvot immediately prior to immersion, the scholars assure that
this is no mere dunk in a body of water, but an act of physical and spiritual
transformation. The women place the
female convert up to her neck in water so that she is as close as she can be to
immersion while still able to receive the final charge from the rabbinic
figures waiting outside. The
scholars’ brief review of a selection of essential mitzvot immediately prior to immersion bestows meaning on this act
and allows this Gentile to become a Jew.
But there is no need for them to be physically in the room in order to
accomplish this function.

Another rabbinic source takes for granted that the immersion for conversion
is a single-gender affair:

מסכתות קטנות מסכת גרים פרק א הלכה ד

האיש מטביל את האיש, והאשה מטבלת את האשה
אבל לא את האיש.

Massekhet Gerim 1:4

A man immerses a man and a
woman immerses a woman, but not a man.

The final
redaction of Massekhet Gerim is post-Talmudic, though it contains much material
that hails from the Tannaitic period.
Whatever its dating, we find here a clear assumption that a woman is the
one who supervises the immersion of a female convert.

Indeed, Rif, Rosh and a host of others simply cite the
language of Talmud Bavli Yevamot and give no indication that the beit din’s
presence has anything to do with seeing the immersion itself. The sense in which the immersion requires a beit
din is that it is given context and content by the beit din, not in
the sense of needing to witness the act of the immersion. For that, the women who are in with the
convert are sufficient. And had the
formulation of this law remained in its Talmudic form, such an approach would
likely have been entirely uncontroversial.
Indeed, authorities in medieval Ashkenaz seem unambiguously to have taken
this interpretive approach. Consider the
following explicit statement from R. Yitzhak b. Moshe (Vienna, 13th
c.):

Our Sages taught: “Any women who need to be checked [for
legally relevant signs of sexual maturity] are checked by women. R. Eliezer used to delegate this to his wife
and R. Yishmael would delegate this to his mother. R. Yehudah says: women can check her [before
the age of 11 and after the age of 12, when she is presumed to be either a
minor or sexually mature, respectively], but they may not check her between 11
and 12, because we do not allow doubts to be resolved by women. R. Shimon says: women can check her between
11 and 12 as well. A woman is trusted
[to provide information about ritual status] in order to be stringent, but not
to be lenient.” But this conclusion that
we do not trust her in order to be lenient must be according to either R.
Yehudah or R. Shimon. However, according
to R. Eliezer and R. Yishmael, a woman is trusted even to be lenient. And perhaps the halakhah follows R. Eliezer
and R. Yishmael, because they acted on their approach. It also says in Yevamot about a female
convert that in the case of a woman, women place her in the water up to her
neck and two scholars stand outside.
This implies that they do not see her and they rely on what the women
see to validate her immersion.

The Or Zarua takes for granted that the Talmud never requires the men to
see the woman immerse, such that he uses this as a basis for establishing
women’s general reliability to establish ritual facts!

Rambam’s Innovation

Rambam, however, modifies the Talmud’s formulation in a significant way:

Three men
stand above him and inform him of a selection of less and more severe mitzvot
once again while he is standing in the water.
In the case of a woman, women place her in the water up to her neck while
the judges are outside and they inform her of a selection of less and more
severe mitzvot while she is sitting in the water. Afterwards, she immerses in front of them and
they then avert their faces and leave so that they will not see her when she
comes up out of the water.

Rambam begins by updating the two scholars to be a group of three, in
keeping with R. Yohanan’s correction of the base text. [See part III.] But the radical change here is that the three
men have now entered the immersion room itself.
Though Rambam preserves something of the original Talmudic text by
omitting any reference to the scholars’ entrance into the room, the last line
here makes it clear they are there.
Their presence in the room is clearly critical for Rambam, because he
now must narrate how they will avoid being in a compromised position when the
woman emerges from the water. Since the
Shulhan Arukh cites the Rambam’s language verbatim, understanding his position
becomes critical for establishing normative practice.

Where does Rambam get this from? It
is possible that Rambam is simply deeply enamored of the notion that the beit
din’s presence—and not just their instruction—is what enables this dunk in
a pool of water to turn someone from a Gentile into a Jew. Taking his cue from the directive to the beit
din to stand above the male convert while he is in the water—עומדין על גביו—he may have assumed that this
could not be any different for the female convert. Indeed, in other parts of Rambam’s narrative
of conversion, he adds details that are not spelled out in the Talmud, such as
the court’s responsibility to review core religious and theological principles
(not just mitzvot) with the convert.
Nonetheless, since the Rambam does not typically add details to his
codification that do not have some sort of anchor in classical rabbinic texts,
others have searched for alternative motivations for this surprising new
requirement.

R. Yaakov Ettlinger (Germany, 19th c.) attempts to ground it in
the language of the gemara itself:

It seems to be that he derived this from the phrase “they
place her in the water up to her neck.”
Why would they need to do this?
It must be because the judges must enter to see her immersion and
therefore she must first sit in the water…

Arukh LaNer, in an effort to give grounding to the Rambam’s words, argues
that the Talmud’s directive to the women to place the female convert in water
up to her neck must be to prepare a reasonable modest situation for the
entering judges. The only reason for
this detail, he argues, is to make sure that the judges will not see her
exposed body when they come in to instruct her and to supervise her
immersion. [The Vilna Gaon makes a similar
claim.] Rambam then merely completes the
second half of the story, directing the judges to leave immediately in order to
avoid seeing the woman as she exits the water just as they avoided seeing her
as she enters.

We argued above that there might well have been another meaning to the
directive to place the woman in water up to her neck, which is to ensure that
she is immediately prior to immersion when the court is addressing her. In fact, Arukh LaNer’s reading seems difficult,
in that the Talmud states that the court stands outside after it directs
the woman to be in water up to her neck.
If Arukh LaNer is correct, ought not it be the case that the men come in
as soon as she is covered in water up to her neck? Why do they wait outside while they inform
the female convert of a selection of mitzvot?

R. Avraham Tzvi Klein (Hungary, 19th c.), in Responsa
Be’eirot Avraham II:33, seems to grapple with these questions along with
the seeming impropriety of having the judges present in the immersion
room. He offers a completely different
reading of Rambam, where טובלת בפניהם refers only to
seeing the woman go under from an adjacent room. This accounts for the lack of a stage
direction for them to enter and controls somewhat for the breach in
privacy. The instruction to the judges
to leave is meant to tell them to leave even this adjacent room such that they
do not even get a glimpse of the woman emerging naked from the mikveh.
This stretches the syntax of the Rambam and posits an additional room of
which he never speaks.

Akiva Sternberg has suggested a
historical context for the Rambam.
Rambam lived at a time when there was a widespread crisis surrounding
the observance of immersion at the end of niddah. The vast majority of women either refused to
go to the mikveh at all, or merely
washed in a regular bathhouse to mark the end of the niddah period. Rambam was heavily involved in communal
efforts to protest this situation and to change it, but to little avail. Sternberg suggests that the Rambam’s
motivation here is that he does not trust women to make sure that an immersion
has happened properly. In a culture
of such widespread female disregard for immersion, Rambam may have felt the
need to ensure that the beit din itself witnessed this key immersion on
which a person’s new Jewish status depends.

However we understand Rambam, his ruling constitutes a significant addition
to the base text of the Talmud and to what seems to have been the holding of
many other medieval authorities. When
later authorities—such as the Shulhan Arukh—cite his language, are they
consciously adopting his innovative standard, or are they merely using a
conventional formula from the pen of a great codifier?

At least one scholar seems to have thought that the latter was the
case. In his commentary on the passage
from Massekhet Gerim cited above, R. Ya’akov Naumberg (Germany, 18th
c.), says the following:

When it
says here, “a man immerses a man”, it does not really mean a single man, for we
hold that the immersion of converts requires three…If so, we clearly cannot
suffice with one man. Rather, when it
says here, “a man immerses a man” it is only coming to teach that a man must
immerse in front of men and a woman in front of women and the scholars stand
outside while the woman immerses. And
so it is written in Shulhan Arukh [YD] 268 that, in the case of a woman, the
women place her in water and the court stands outside.

Quite clearly, Nahalat Ya’akov reads the language at the end of the Shulhan
Arukh as imprecise, reflecting a quotation of the Rambam that is not meant to
have legal force. However, most later
authorities did not approach the Shulhan Arukh in this way and assume that its
language is meant to endorse the Rambam’s insistence on having judges present in
the room when the female convert immerses.
We have seen how R. Ovadiah Yosef, R. Moshe Feinstein and others all
follow the Rambam exactingly and insist that the presence of the male beit
din for the female convert’s immersion is essential. That consensus in Rambam interpretation is
strong. Relying on alternative
interpretations of the Shulhan Arukh or on attempts to minimize the Rambam’s
sway over this discussion would likely only succeed when combined with nuanced positions
outlined in the other parts of this essay.
As noted in Part III, several medieval authorities are far from certain
that a beit din is
even required for immersion at all, much less that there is any requirement to
be in the room.

However, there
are signs of openness to more flexible readings of the Rambam’s requirement for
presence, even among the most strident supporters of the ongoing centrality of
his position. R. Ovadiah Yosef,
immediately after insisting on hewing to the Rambam’s protocol, says the
following:

However, it is possible that
if the beit din was outside and they informed the female convert of
selected mitzvot at the time of the immersion, perhaps there is place to
be lenient after the fact not to require her to immerse once again in the
physical presence of three. This
requires further investigation.

R. Moshe Feinstein seems to go further, arguing that we ought to be broader
in our understanding of the Rambam’s definition of presence:

With
respect to a conversion that happened in the presence of three valid judges who
entered he mikveh while the convert was in the water up to her neck, but
since the entrance was narrow, they could not stand in a line such that all of
them could clearly see her head submerge.
Rather, they stood one behind the other and only the one in front, who
stood next to the mikveh, could see, whereas the other two could not see
but heard the sound of the immersion when her head went into the water.

…Even
according to the position of Rif and Rambam…it is obvious that if they heard
the sound of her head going into the water [that the conversion is valid] for
that is certainly like seeing it…But even if they did not hear the sound of her
head submerging…it is also obvious that the conversion is valid…We do not
specifically require actual seeing [of the immersion]; if there is knowledge
and an obvious assessment that she certainly submerged her head as they
instructed her to—there was no way for her to be presumed a valid convert
without submerging her head—one need to have any concerns at all…

This complex responsum argues that even the Rambam’s definition of presence
does not require being in the room.
Knowing that something happened by a strong assessment of the available
facts is equivalent to seeing it, and having other concrete evidence (such as
hearing the immersion and/or relying on the testimony of a reliable individual
witness) is on even stronger ground. [R.
Moshe goes on later in the responsum to appeal to position 5) that we discussed
in part III above, which validates the notion of clear knowledge as being
equivalent to physical presence. He
creatively suggests that perhaps even Rambam would have agreed with this basic
treatment of facts by position 5): physical presence is not truly necessary for
the beit din to be “present” at an immersion. Interested readers should consult the rest of
this text to see the argument there.]

We should note that R. Moshe offers language and legal reasoning that seem
to support actively allowing the beit din to be outside the room, but in
the actual case he addresses, the court was physically present (albeit
with obstructed view of the immersion) and he is merely being called upon to
validate a conversion process that already took place. It is also surely the case that reading R.
Moshe as a prescriptive authorization in keeping with Rambam to have the court
out of the room would require quite a stretch of the latter’s actual
language. Rambam seems to go out of his
way to place the beit din in the room.
If Rambam truly thought the beit din could just as easily be out
of the room, why did he not simply retain the Talmud’s original language? These questions may affect whether this
responsum alone can be invoked to alter standard procedure going forward; it
would seem more sound to have this source interplay with the many other factors
we have examined.

Summary: The Talmud seems not to
require that the beit din be in the room when a female convert immerses;
indeed it seems to forbid it. This
reading of the Talmud seems to have been adopted by many great medieval
authorities, including those prior to the Rambam and those who lived in
Ashkenazi legal cultures shielded from his influence. Rambam, by contrast, seems to require that
the beit din witness the immersion itself. The language he uses suggests that this
happens by entering the room in which the female convert will immerse, though
the source for this requirement is unclear.
Some argue for a basis in the Talmudic text, whereas others see
historical factors as paramount. Either
way, the Shulhan Arukh adopts the Rambam’s language, leading most later
interpreters to assume that he adopts the Rambam’s standard in this regard. Whether Rambam’s definition of presence is
non-negotiable is less clear; one might be able to argue that in pressing
circumstances he would still consider a court that stood immediately outside to
count as being in the presence of the immersion.

Part V: Gender—Why not have a female beit din?

Of course, much of the concern that has arisen is specific to the
opposite-sex nature of the interaction between a male beit din and a
female convert. The impropriety of such
interactions is felt all the more acutely in communities with otherwise robust
codes around opposite-sex interaction.
This entire issue could be resolved if women were simply allowed to
function as members of the beit din.
Why wouldn’t they be?

In Shoftim
4:4-5, we are told that Devorah judged the people and that they came to her
for judgment, seemingly indicating that women are fit to serve as
judges. A number of rabbinic sources, in
passing, seem to affirm this notion as a historical reality: Rut Rabbah Parashah 1 reports a number
of views as to who the “judges” mentioned at the beginning of the book of Rut
were. Among the candidates: Devorah and
Yael. Kohelet Rabbah Parashah 2
reports that among the many people in the king’s royal entourage were male and
female judges. By contrast, Sifrei
Devarim #13 considers it absurd that women would ever be appointed as
community leaders of the sort that Moshe tells the people to appoint as judges
in Devarim 1:13.

These descriptive sources seem to portray an uneven historical record with
respect to women and positions of judicial power. And rabbinic sources are thin when it comes
to clear statements about gender and judging. Mishnah
Niddah 6:4 states
that כל הכשר לדון כשר להעיד/“Anyone who is
fit to serve as a
judge is fit to serve as a witness.
The contrapositive of this statement is that anyone unfit to be a
witness is certainly unfit to be a judge. Given that Mishnah
Shevuot 4:1 (among many other sources) indicates
that women are disqualified from serving as witnesses, women would
thus seem to be invalid to serve as judges. Indeed, Yerushalmi Yoma 6:1 states
this plainly: הרי למדנו שאין האשה מעידה
מעתה אין האשה דנה/“We have learned that women may not give testimony, therefore a
woman may not serve as a judge.”

However, the
Talmud Bavli opens up the possibility that the Mishnah’s rule is not
ironclad. On Niddah 49b-50a, the Talmud probes
the Mishnah’s statement that יש שכשר להעיד
שאינו כשר לדון/“There are some who are fit to serve as witnesses who are not
fit to judge.” R. Yohananstates that this is meant to include a
person who is blind in one eye, who is fit to witness, but not fit to
judge. We then hear that R. Yohanan used
to allow a blind man in his neighborhood to serve as a judge, in seeming
contradiction to his explication of the Mishnah. The sugya argues that Mishnah Niddah reflects
the view of R. Meir and that R. Yohanan instead preferred the authority of a
different Mishnah, one which suggests that blindness is not a limitation on
being a judge. Does this undermining of
the second part of the Mishnah also extend to its first part, perhaps
suggesting that there are some who are valid to judge who are nonetheless
invalid as witnesses, such as women? The
Talmud does not explicitly explore this possibility.

[There is also
a passage on Gittin 5b that is invoked by some to prove that women are invalid
as judges, and it seems to have been read as such by both Rashi and Ran. However, others read it as a statement
regarding a woman being invalid to judge a case related to her own bill of
divorce, such that it is not a concern of gender, but rather of
impartiality. In any event, while the
interpretation of this source by medieval authorities is useful for determining
their positions, the Talmudic source itself is not dispositive.]

In the middle
ages, the question of gender and judging receives a bit more attention. Tosafot, in a number of places, grapple
with the contradiction between Devorah’s seeming legitimacy as a judge and the
seeming exclusion of women that results from juxtaposing Mishnah Niddah and
Shevuot. Two main traditions emerge from
the school of the Tosafot:

·One approach holds that Mishnah Niddah is only speaking
about men. All men who are valid to
judge are valid to witness. But women,
though they are valid to judge are invalid to witness. According to this view, women are in fact
valid as judges. [This view can be seen
most clearly in Tosafot Bava Kama 15a s.v. asher and Tosafot Gittin 88b s.v. v’lo.]

·Another approach holds that women are indeed invalid. Devorah was only valid as a judge either
because she a) was appointed by God or b) simply taught laws without having
coercive legal authority or c) was voluntarily accepted by the people because
the divine presence dwelt upon her. This
view also cites the Yerushalmi as supporting evidence. [Elements of this approach can be seen in the
two passages above as well as in Tosafot Yevamot 45b s.v. mi, Tosafot
Shevuot 29b s.v. shevuat and Tosafot Niddah 50a s.v. kol.]

In Part III, we
saw R. Yehudah bR. Yom Tov and R. Simhah seemingly implicitly follow the first
view when they validate a woman as a judge in the context of witnessing an
immersion for conversion. Ritva on Kiddushin 35a cites both views detailed
above as live positions. So does Sefer
Hahinukh #77, though he indicates a preference for the view that
invalidates women. Rosh Shevuot
4:2 rules like the second view above as well.

Rambam never weighs in on the specific
question of gender and judging, but he makes a more general statement that
women may not hold any significant public office, which would seem to extend to
judging as well. Most rishonim don't
address this issue one way or the other.

Shulhan
Arukh HM 7:4 sides
with those who disqualify women from serving as judges, though Tiferet
Ya’akov(R. Ya’akov Gesundheit, Warsaw, 19th c.) there is bothered by the lack of nuance
in disqualifying women, since this was a subject of medieval debate. Indeed, a number of modern authorities have
refused to outright issue a ruling that depends entirely on the
disqualification of women as judges. R.
Shlomo Lifshitz—chief rabbi of Warsaw in the early 19th century—in Responsa Hemdat
Shlomo 29-30, discusses a case of a woman who was converted by a group
of women. In his lengthy analysis of this case, he casts doubt on
whether it is so obvious that a convert really needs a beit din in a post facto situation, and even if so,
whether it is so obvious that a group of women would not be
sufficient for this purpose. He refuses to cavalierly dismiss the
potential validity of women as judges and minimally sees this as creating a
situation of doubt. [See also Responsa
Minhat Yitzhak I:122:17.]

In more recent
times, there was a lively debate between R. Hayyim Hirschenson (Israel/United
States, 19th-20th c.) and R. Ben-Zion Meir Hai Uzziel (Israel,
20th c.) regarding gender and judging. R. Hirschenson, in Responsa Malki Bakodesh
II, argues that women are in fact valid as judges, contrary to the apparent
holding of the Shulhan Arukh! He states
that the Talmud marginalizes Mishnah Niddah 6:4—as we explored above—and there
is thus no reason to exclude women as judges.
Furthermore, he argues, even the Tosafot would only have thought that
women are not expected to judge, but not that they are actually
disqualified. While some of these
readings seem forced, R. Hirschenson is essentially reviving the ancient and
medieval sources that seem to approve of gender-blind judging. In response, R. Uzziel in Responsa
Mishpetei Uzziel Bish’elot Haz’man #43, attacks his position and argues for
the disqualification of women as judges.
He deflects R. Hirschenson’s readings of the Talmud and the Tosafot and
insists that any medieval positions endorsing female judges are overridden by
the Yerushalmi and the unequivocal position of the Shulhan Arukh. Even R. Uzziel, however, argues that a
community could theoretically make a takkanah to accept women as valid
judges in their midst. He, writing in
the 1930s, thinks this is a bad idea both for family values and on account of
his assessment of women as overly compassionate and easily hurt, which are
traits that can get in the way of the fair—and sometimes necessarily
harsh—administration of justice. Needless
to say, some of those considerations seem to have changed in the intervening
years. Though in the context of
conversion, which must theoretically be valid for the entire Jewish people, it
is not clear that the acceptance of women as judges in a local community would
be sufficient to anchor a conversion process for people who will almost
certainly move between communities.

There is a
last, overarching factor to consider.
Even if, as a matter of precedent, one sides with the restrictive
medieval positions, the Shulhan Arukh and R. Uzziel, this all presumes that the
category of “women” is a biological category that can be mapped onto all those
with an XX chromosome in any time or place.
This is far from certain. The
“woman” who is invalid to judge may be a member of a sociological category,
those who are social adjuncts with insufficient authority to represent the
community and to enforce its will and interpretation of God’s law. This is perhaps most clear in the following
list of people who are invalidated as witnesses:

The following are invalid to
testify: A dice-player, one who lends on interest, a pigeon racer, those who
trade in Sabbatical produce and slaves.
This is the rule: Any testimony that a woman is unfit for, they too are
unfit for.

The context
here groups with women with other characters who lack social status, are
lawbreakers or who otherwise demonstrate detachment from the core stakeholders
of society. Their exclusion in this
context hardly seems grounded in biology, but rather in social status. While it
is not a simple matter to jump from this context to a statement that ancient
restrictions on female testimony no longer apply, it is far from safe to assert
that such restrictions are clearly in force.
One can certainly imagine treating this question as one axis of doubt,
such that when combined with another axis of doubt—the medieval and modern debates
over whether even the Talmudic woman is invalid to judge, following Tiferet
Ya’akov above—one would take a gender-blind approach to judging, even beginning
from conventional rabbinical assumptions surrounding gender and power. This is all the more relevant when we combine
these questions with the ambiguities raised in the other parts of this essay.

Summary:
Devorah is a famous example of a Biblical judge and other narrative rabbinic
sources affirm the notion that a woman could be a judge. Nonetheless, women were classically excluded
from testimony not only in ancient Rome, but in rabbinic law, and several
statements indicate that anyone barred from serving as a witness cannot serve
as a judge. In the schools of the
Tosafot, there was some disagreement as to whether women could serve as judges,
and the Shulhan Arukh comes down on the side of those who forbid. Some later authorities assert that this
debate was not fully resolved and the inclusive position might still have a
role to play in a broader halakhic deliberation. In the modern period, some sought to argue
for the validity of female judges, though the broad contours of halakhic
consensus remained opposed. In the contemporary
world, however, dramatic shifts in gender roles seem to invite a reassessment
of that consensus, which may not be an appropriate application of halakhic
principles and values to contemporary reality.

Conclusion:
Possible pathways forward

A growing
chorus of voices in recent years has found the black-letter law practice we
began with to be objectionable and untenable in our current environment. Recent scandals have only led to great
conviction among many that the era of women immersing in the presence of men
must come to an end.

One point is
certainly fixed: Conversion to Judaism, in a framework faithful to rabbinic
texts and values, necessarily requires an immersion where water comes into
contact with all parts of the body at once.

Another point
seems only mildly open for discussion, at least when considered on its
own. One voice in the Tosafot indeed
suggests that the beit din is not essentially connected to the act of
immersion, and the Shulhan Arukh seems to endorse this view. However, most medieval voices do not take
this approach, including many other voices in the Tosafot themselves,
preferring to see immersion as the province of the court as well. Furthermore, the Shulhan Arukh, upon citing
the Tosafot, immediately cites Maimonides’ contrary view as well. Moreover, even the Tosafot only seem to
endorse their theory in order to uphold a conversion after the fact. There seems to be universal preference for
the presence of a beit din for the immersion as well. Therefore, any successful reconsideration of
the relative weighting of Tosafot and Maimonides will likely simultaneously
reconsider other factors as well.

A few other
paths forward remain.

For some, a
sufficient option will be to follow the counsel of a number of recent authorities that
special loose-fitting clothing become a standard part of the immersion for
female conversion. Perhaps male
conversions will take on this element as well; for many bodily exposure in
same-sex environments is not experienced as totally safe and proper in our
contemporary environment, particularly in a case of the power gap present
between a court and a convert.
Nonetheless, others (both legal authorities and potential converts) may
resist such a solution as non-ideal, risking losing the full symbolism of
rebirth at the heart of the conversion ritual.
Indeed, it is the very vulnerability of nudity—so central to discussions
focused on abuse of authority—that is part of the core power of the ritual of
conversion through immersion.

Another pathway
is to revisit just what the presence of the beit din entails,
particularly in uncomfortable situations.
For those not influenced by Maimonides, it is clear that the court’s
presence immediately outside of the room is sufficient. As long as they speak to the convert about mitzvot
while the latter is in the water, the presence requirement has been
fulfilled. There was clearly a
longstanding tradition allowing this and there are still many conversion courts
that practice this way. It may also be
the case that later codifiers like the Shulhan Arukh adopted Maimonides’
language without intending to endorse every detail of his presentation. Even according to Maimonides, one might
still contend that being immediately outside the room meets his requirements,
and R. Moshe Feinstein seems to support this point, though the exact scope of
his ruling is unclear. Still, there will
be authorities (and perhaps even converts) who will resist this marginalization
of Maimonides’ framework, no matter how well textually grounded such resistance
might be. After all, the Talmud does
demand that the beit din be in the room with a male convert,
suggesting that physical presence in the room lends more gravity and meaning to
the immersion than when the court stands outside.

There is a final pathway. The most elegant, direct and, in some
ways, honest solution to the problem is to articulate the validity of women to
serve as judges on rabbinic courts. In
many cases, all concerns would be addressed if the prospective convert only
needed to be exposed to authority figures of the same gender. And such an approach would also tackle
head-on some of the underlying gender-power concerns that have animated many
public discussions of the topic. Many
would then feel that no compromises would then be needed around nude immersion
or the physical presence of the beit din. The halakhic pathway to such an articulation
is to assert (minimally) a doubt with respect to the ongoing vitality of the
disqualification of women from witnessing and judging in our contemporary
society and to combine this with a second axis of doubt stemming from the
medieval and modern positions that validate women as judges even without a
wholesale reevaluation of the social categories of gender. For some, this sort of ספק ספיקא—permission generated through two axes of doubt—may be
sufficient to resolve the issue comprehensively. Not all will buy this logic—at least at this
point in history—and will find the honesty and transparency of this approach to
be outstripped by what they perceive to be its discontinuity from the deep and
immediate past.

Each of these pathways has great merit along with some expected avenues of
resistance. Therefore, perhaps most important will be a
flexibility and willingness to consider multiple factors of flexibility working
in tandem to allow for new possibilities.
For instance, Michal Tikochinsky has argued for essentially having
conversion courts of three men and three women, with the men standing right
outside the immersion room while three women supervise the female convert, who
immerses in their presence. The argument
(as I would put it) would be: Women are plausibly valid to serve as judges in
today’s world according to all opinions, and even if not, they are functioning
as emissaries of the beit din.
Even if such a function is not meaningful, the beit din of men
can be certain on their account that the immersion has taken place, making it
as if they were in the room. Even if
this is insufficient, perhaps the beit din doesn’t need to be there at
all. And if such an arrangement is still
not quite comfortable enough for the female convert, perhaps having her immerse
in loose-fitting clothing will assuage some of those concerns as well.

But key will be
to recognize that not every convert, nor every community, nor every rabbinic
authority will feel comfortable with a single, uniform approach. Our only hope to move forward—as is usually
the case with halakhah—is to take in the entire picture, to internalize the
values of our sources, even as we appreciate their deep nuance, and to do our
best to accept after the fact as valid even conversions that we might have
performed a little bit differently ourselves.